01A24065_r
06-12-2003
Frank B. Trujillo, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Frank B. Trujillo, Jr. v. United States Postal Service
01A24065
June 12, 2003
.
Frank B. Trujillo, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A24065
Agency No. 4F-956-0118-00
Hearing No. 370-A1-X2338
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
order.
The record reveals that complainant, a part-time Flexible Clerk at the
agency's Chico, California facility, filed a formal EEO complaint on
September 7, 2000, alleging that the agency discriminated against him
on the basis of disability (cluster headaches, depression, and chemical
dependency) and in reprisal for prior EEO activity when on May 26, 2000,
the agency terminated his employment.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The agency's final order implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The AJ found that complainant was a qualified individual with a disability
with respect to his depression and cluster headaches. However, the
AJ found that complainant failed to prove that his chemical dependency
was covered under the Rehabilitation Act by demonstrating that he had
successfully completed a drug rehabilitation program.<1> Nevertheless,
for purposes of further analysis, we assume, arguendo, and without
finding, that complainant established that he is a qualified individual
with a disability for all of his conditions under the Rehabilitation
Act.<2>
Here, the record reflects that the agency articulated legitimate,
non-discriminatory reasons for terminating complainant. Both
complainant's supervisor and the Postmaster testified that their decision
to terminate complainant was based upon complainant's pattern of failing
to report to work without giving prior notification to management.
The record contains documentation reflecting that the agency issued
complainant a letter of warning and two suspensions for absences in 1999,
yet complainant thereafter amassed numerous additional Absent without
Leave charges from November 1999 through March 2000. We note that
complainant's supervisor afforded complainant the opportunity to explain
his numerous absences and tardiness prior to removing him, but complainant
testified that he could not recall the reason for some of the absences nor
confirm that he contacted his management prior to the absences. Finally,
we find that complainant failed to present evidence demonstrating that
the agency's proffered reasons were pretexts for unlawful discrimination.
Complainant contends that he should not have been removed from his
position because his December 1999 absences were the result of his
disabilities, but he adduced no reliable evidence that his supervisor
had notice of his chemical dependancy or cluster headaches. In fact,
complainant testified that because he did not inform his supervisor or
the Postmaster of his chemical dependency until after his termination
because he thought it was a private matter. Without notice of his
chemical dependency and cluster headaches, the agency was not required
to provide a reasonable accommodation. Complainant maintains that his
request for leave under the Family Medical Leave Act (FMLA) for depression
in February 2000 constitutes a request for reasonable accommodation.
However, the large majority of the absences cited by the agency as
the bases for complainant's termination occurred before complainant's
FMLA request. Since reasonable accommodation is always prospective,
an employer is not required to excuse past misconduct even if it is
the result of the individual's disability. See Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002, at Question 36 (rev. Oct. 17, 2002)
(�Guidance�).
Moreover, regular attendance is a uniformly applied conduct rule,
that is job-related and consistent with business necessity. An
employer may discipline an employee with a disability for engaging in
such misconduct if it would impose the same discipline on an employee
without a disability. See Guidance at Questions 35-36. Accordingly,
we conclude that the agency was not required to excuse the misconduct
of months of absences without leave or to rescind the discharge.
Therefore, after a careful review of the record, the Commission finds that
complainant failed to present evidence that any of his termination was in
retaliation for his prior EEO activity or was motivated by discriminatory
animus toward his disabilities. We also find that the agency did not
deny complainant reasonable accommodation. As such, we discern no basis
to disturb the AJ's decision. Accordingly, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__June 12, 2003________________
Date
1Although the illegal use of drugs are excluded from protection under
the Rehabilitation Act, persons who have successfully completed a drug
rehabilitation program or otherwise been rehabilitated successfully
and are no longer engaged in illegal drug use are covered by its
provisions. See C.F.R. 1630.3; 29 U.S.C. 706(8)(C)(ii), 791(g).
2 A "qualified individual with a disability" is an �individual with a
disability� who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).